01/13/2009 05:12 am ET Updated May 25, 2011

Elect Hillary's Replacement

While the sordid saga of Rod Blagojevich's Senate Seat Sale unfolds, a variety of Illinois politicos are trying to stop Blagojevich from appointing Obama's successor. The Illinois legislature meets on Monday to discuss what to do. Illinois Senator Richard Durbin has called upon the legislature to schedule a special election. Durbin is right: the people of Illinois should be allowed to vote for their new Senator.

But Durban's proposal isn't just right for the Windy City; it's also the right approach for the Big Apple. Hillary Clinton's successor in the Senate should be picked by the voters, not the Governor.

Don't get me wrong: I'm not accusing Governor Paterson of malfeasance in selecting Hillary Clinton's successor (in New York, unethical governors who get busted on federal wiretaps are so nine months ago). This is about democracy: the people of New York should have the right to elect a new senator in a special election, just as they would if the vacancy developed in the House of Representatives.

The Seventeenth Amendment mandates special elections for midterm Senate vacancies, unless the state legislature explicitly provides for interim gubernatorial appointments. Several states have immediate special elections without temporary gubernatorial appointments. These states include Oregon, Wisconsin, and Alaska. Moreover, the Constitution mandates special elections be held for midterm vacancies in the House of Representatives without any gubernatorial appointment. It's nonsensical that residents of New York's 18th District would have a special election if Clinton had been their Representative, but that the people of New York cannot vote now on replacing her because she was their Senator.

Right now, Governor Paterson is deciding whom to appoint to Clinton's seat. Rumor is that Caroline Kennedy and Andrew Cuomo lead the pack, to say nothing of "The Nanny" actress Fran Drescher. An interim appointment to the Senate is a powerful political plum because the new Senator won't stand for election for two years, providing a strong incumbency advantage.

Authorizing a special election would be easy. The New York legislature can amend Public Officer Law §42(4)(a) to allow for a special senatorial election, just like the special election for Representative vacancies in §42(4). The legislature could set ninety days for campaigning and then hold a statewide ballot for the new junior senator. Governor Paterson is unlikely to veto a law enfranchising New York voters. True, there would be the added cost of a special election, but that's a small price to pay for a Senate seat (which, as Governor Blagojevich so eloquently reminded us, is no cheap thing).

It's up to the New York State legislature. It can keep the law as is and permit the Governor to appoint someone who will have a strong incumbency advantage in two years, or it can amend the law and let the people of New York vote now for their United States Senator. The right course is clear: New York voters shouldn't have to bust their governor to vote for Hillary's successor.